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Sewa Ram v. Surat Prakash Gupta And Another - WRIT - A No. 20686 of 2004 [2006] RD-AH 14571 (28 August 2006)


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Court No. 7

                   Civil Misc. Writ Petition No. 20686       of 2004

Sewa Ram                             Versus        Surat Prakash Gupta and another

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

The petitioner claims that he was tenant of shop nos. 1 and 2 of the landlord as detailed in the map appended along with the Survey Commissioner Report (Annexure-6 to the writ petition).

An application was instituted by the landlord under Section 21(1)(a) of the U.P.Act No. 13 of 1972 for the release of the disputed shop on 31.8.1988 on the ground of personal need. After the written statement was filed by the petitioner on 8.12.1988 and replication was filed on 16.1.92 by the landlord. An application was filed by Sri Achit Prasad father of landlord- respondent no.1 stating that the shop no.3 which is in the tenancy and possession of the petitioner at the rate of Rs.12/- per month was given to the respondents and that the need of his son Sri Surat Prakash Gupta would be satisfied.  

Release was granted by the Prescribed Authority vide order dated 26.5.1998.

In compliance of the aforesaid order dated 26.5.1998 the petitioner vacated shop no.3 in favour of respondent no.1 and handed over the same to respondent no.1 in April, 2001.

By order dated 9.4.2004 the Additional District Judge, Fast Track Court No. 27, Etawah affirmed the release in appeal which has been challenged in the present writ petition on the ground that the trial Court while comparing the hardship was also of the view that the petitioner would not suffer any hardship at all in comparison to the hardship suffered by the respondents as he had two shops in his possession.

In the writ petition the ground of challenge is that during the pendency of appeal the petitioner on the basis of compromise vacated the shop no.3 on 9.6.2002 in favour of the respondents on the assurance that the respondents will not press the release application against him and he will continue in the possession of shop no.1 but the intention of the respondents had become dishonest after getting the possession of shop no.3 from the petitioner. It is stated that the respondents did not fulfill the commitment by withdrawing the release application against the petitioner for release of the shop.

The other ground for challenge is that after getting the possession of shop no.3 from the petitioner the respondents set up a case of fictitious oral partition between respondent nos. 1 and 2 by which shop nos. 1,9 and 10 fell into the share of respondent no.1 and shop nos. 3,8 and 2 fell into the share of respondent no.2 who in order to strengthen the need of respondent no.1 executed a gift deed of shop no.3 in favour of his brother Sri Agam Prakash vide gift deed dated 3.5.2001.

The counsel for the petitioner states that the respondents have got another shop no.8 released from Sri Ram Charan and the business of Tara Bartan Bhandar which is carried out earlier in shop no.2 was shifted to shop no.8, as such shop no.2 has become vacant.

He submits that the petitioner filed an application for issuance of a commission before the appellate Court. The Commissioner made survey of the disputed building and categorically stated that shop no.2 is lying vacant and has been controverted into the gallery and shop no.10 has been partitioned into three parts and one part of which has been let out by respondent no.1 for carrying on liquor business to one Thekedar and the remaining portion of shop no.10 as well as shop no.9 are lying vacant.

The attention of the Court has been drawn by the counsel for the petitioner that respondent no.1 is also carrying on the business of liquor at Khrend District Firozabad and the licence in this regard has been granted in favour of respondent no.1 on 22.3.2002.

It is lastly urged that respondent no.1 has started his business having enough space to run the same in between the gate of shop nos. 8 and 10 and that respondent no.1 had also been running the business of vending utensils in the market of Jaswant Nagar which is in the names of his mother but without giving any thought to the facts thus broughtout in appeal the Additional District Judge, Fast Track Court no.27, Etawah has dismissed the appeal of the petitioner on irrelevant consideration.

The counsel for the respondents submits that this writ petition has been filed by concealing the material facts that the application dated 6.6.1989 (Paper no. 33-C) had been rejected by the Prescribed Authority vide order dated 12.7.1989 which has been appended as Annexure-CA-1 to the counter affidavit on the ground that there was no link between the said application and handing over possession of shop no. 3 in favour of Agam Prakash Gupta under a written deed dated 9.6.2002 and that the petitioner has vacated shop no.3 in favour of Agam Prakash Gupta on 9.6.2002. It is submitted that the said shop no.3 had fallen in the share of Anoop Prarkash Gupta after the death of their father Achint Prasad Gupta. Subsequently, Anoop Prakash Gupta by means of the registered gift deed dated 3.5.2001 gifted the said shop no.3 in favour of his other brother Agam Prakash Gupta.  After negotiation the petitioner had vacated shop no.3 in favour of Agam Prakash Gupta who was not even party to the proceedings and this fact shows that the petitioner had no need of any shop and was malafide occupying the same for oblique motive.

He further submits that the aforesaid facts were in the knowledge of the petitioner but he has filed this writ petition by concealment of the aforesaid facts but this plea was never raised before the appellate Court as is apparent from the judgment dated 9.4.2004 and he has raised this plea for the first time in the writ petition.  It is stated that in fact the petitioner had never used shop nos. 1 and 3 for running any business and had locked the same for several years and had been doing his business from other places especially in exhibitions, melas, fairs etc.

He also submits that during his lifetime Sri Achint Prasasd Gupta had separated his 3 sons namely Subhash Chandra Gupta, Alakh Prakash Gupta and Agam Prakash Gupta and there was no dispute regarding the shares being given to the elder 3 sons. The shop nos. 6 and 7 which have been sold out does not relate to the present dispute inasmuch as these shops had fallen in the share of Subhash Chandra Gupta and Alakh Prakash Gupta. Subhash Chandra Gupta had sold shop nos. 6 and 7 and Agam Prakash had sold shop no.5.  It is submitted that along with Sri Achint Prasad Gupta his two younger sons Anoop Prakash and Surat Prakash were living. Surat Prakash Gupra was unmarried and had successfully completed two years course of manufacturing of leather items from Leather Working School, Dayalbagh, Agra.  He wanted to set up his own business and for his need the application under Section 21(1)(a) of the Act was filed by Achint Prasad  Gupta in 1988 for release of shop no.1.

It is urged that in view of the statement of the petitioner the court below has rightly disbelieved the case of the petitioners as the business of Tara Bartan Bhandar was being done by Anoop Prakash Gupta brother of the answering respondent. Placing reliance upon the report of the Survey Commissioner it is submitted that there was some area lying in back of shop no.1 (shop in dispute) as there was no access to it and that it could be utilized once there was approach available to it.

From perusal of Annexure-CA-3 it appears that the petitioner has taken another shop on rent at some other place from where he is doing his business. The relevant extract of Annexure-CA-3 is as under:-

          " vr%ge Ik{kdkjku fuEu rgjhj djrs gS%&

1- ;g fd nqdku fdjk;s fxjQrk fuEu lhekc/n izFke Ik{k }kjk viuh fdjk;snkjh ls NksMdj mldk dCtk n[ky f}rh; Ik{k dks ns jgk gS rFkk viuk O;kikfjd lkeku tks bl nqdku esa gS dks gVkdj nwljs LFkku tks fdjk;s ij izkIr dj fy;k gS esa ys x;k vkSj viuk viuk dkjksckj O;kikj izFke I{k us u;s LFkku ij izkjEHk dj fy;k gS A

2- -----------------------

3- -------------------

4- -----------------

5- -------------------------------------------------------------------------------------------


         In rebuttal, the counsel for the petitioner submits that he had only one shop which is in dispute and not any other new place.

After hearing the counsel for the parties and on perusal of the record I am of the view that as a matter of fact shop nos. 2 and 3 were given by the petitioner to Sri Agam Prakash Gupta and not to the respondent Surat Prakash Gupta. In the release application the shop in dispute was shown to be for Surat Prakash Gupta who is still unemployed. The petitioner has failed to show that respondent no.1 was doing any business in his own independently. Every adult member of the family of the landlord has a right to establish his own business.  Moreover, it is evident from perusal of Annexure-CA-3 quoted above that the petitioner has unequivocally has stated that he has shifted his business to a new place and not to the old shop which was in dispute with him. The petitioner has stated that he has acquired new place for his business in which he is running his business. It also appears from the record that the shop under the possession of the petitioner remained closed though this fact has been denied by him.  It appears that the shop will remain closed as the petitioner is doing his business from his new shop acquired by him else where as admitted by him. In view of the admitted facts that the petitioner has acquired in vacant state another shop from where he is running his business, there appears to be no illegality or infirmity in the orders passed by the Courts below.  The Court below has rightly held that the bonafide need and comparative hardship in favour of the respondents.

For the reasons stated above, the writ petition is dismissed. No order as to costs.

Dated 28.8.2006



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